Dismissed

A Lalitha Jayasri v. a K R Prasad (Died)

Andhra Pradesh HC22 Dec 2021CRP/517/2020

Case brief

AI extract

What is this about?

The High Court dismissed a revision petition challenging the trial court's refusal to admit xerox copies of ledger books as secondary evidence. The Court held the petitioner failed to disclose possession of the copies at the required time and did not make out a case for interference under Order VII Rule 14 C.P.C. and Section 65 of the Evidence Act.

What did the court decide?

The revision petition was dismissed with no order as to costs.

A Lalitha Jayasri Vs a K R Prasad (Died) — Property and Title | Andhra Pradesh HC (2021)

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HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

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C.R.P.No.517 of 2020

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ORDER:

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The petitioner had filed O.S.No.616 of 2000, in the Court of III Additional Senior Civil Judge, Vijayawada, against her brother and other family members for partition of the property shown in the schedule to the suit and the same was renumbered as O.S.No.1063 of 2009. Thereafter, the petitioner filed I.A.No.121 of 2008 to include another property described as plaint ‘B’ schedule property, in the plaint, on the ground that her brother, who was arrayed as the 1^st defendant, had obtained the property in his own name, from the Vijayawada Wholesale Commercial Complex Members Welfare Society, even though their father had paid the entire sale consideration, and the said property should be included in the suit schedule. This application was allowed and plaint ‘B’ schedule property was included in the suit. The 1^st Defendant passed away and his legal representatives have been impleaded as defendants in the suit.

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The petitioner, to demonstrate that the plaint ‘B’ schedule property had been purchased by her father, had filed I.A.No.658 of 2017 to summon the Secretary of the Vijayawada Wholesale Commercial Complex Members Welfare Society to demonstrate that plaint ‘B’ schedule property had been purchased with the money paid by her father to the said society. This application was allowed and the secretary of the said society was examined as PW4. The said witness was called upon to produce the ledgers of the society prior to 2003 for ascertaining the source of the sale consideration paid for the plaint ‘B’ schedule property. PW.4 stated that the ledgers prior to 2003 were not available with the

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RRR,J 2 C.R.P.No.517 of 2020

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society and that the records from 2003 had been computerised and are available.

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After the evidence of PW.4 had been recorded, the petitioner had filed I.A.No.538 of 2019 under Order VII Rule 14 and Section 151 C.P.C., read with Section 63 of the Indian Evidence Act, 1872, seeking permission of the Court to submit Xerox copies of the ledgers of the society, prior to 2003 and for the Court to receive the same as secondary evidence. Respondents 5 and 6 in the application, who are arrayed as respondents 5 and 6 in this revision petition, had opposed the said petition. The trial Court after hearing both sides dismissed the said application on 18.12.2019. Aggrieved by the same, the petitioner has approached this Court by way of the present revision petition.

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The case of the petitioner is that her father had paid the entire sale consideration to the society for purchase of plaint ‘B’ schedule property. However her brother, who was arrayed as the 1^st defendant, had suppressed these facts from the rest of the family and got the sale deed for plaint ‘B’ schedule property executed in his name. To demonstrate the fact that her father had paid the entire sale consideration, the petitioner sought the production of the ledger books of the vender society prior to 2003. The representative of the society, who had appeared in the Court and was examined as PW.4, had stated that the said records were not available with the society. Thereafter, the petitioner filed an application, stating that her husband had unofficially obtained Xerox copies of the said ledgers earlier and the petitioner should be permitted to produce the said Xerox copies as secondary evidence.

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Respondents 5 and 6 opposed this application on two grounds. Firstly, the petitioner had suppressed the fact that she and her

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husband were in possession of the Xerox copies of the said ledger and conducted the trial of the case without revealing these facts at any stage. In such circumstances, the petitioner is not entitled to produce the said document as evidence; and secondly, on the ground that nothing has been placed before this Court to show that the ledgers that are sought to be produced are Xerox copies of the original ledgers.

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The trial Court held that suppression of the fact of possession of Xerox copies of the ledgers and the question as to how the husband of the petitioner obtained copies of ledgers, which according to the representative of the society are not available with the society, had not been explained. The trial court also took the view that Xerox copies of the documents could not have been marked as secondary evidence and the relief sought in the application was for receiving documents by condoning the delay and for admitting the documents as secondary evidence should have been made by way of two separate applications whereas a single application has been made with two separate prayers and the same is not in accordance with Rule 55 of the Civil Rules of Practice.

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Sri P. Rajsekhar, learned counsel appearing on behalf of Ms. S. Hela Mounica, learned counsel appearing for the petitioner has taken this Court through the evidence adduced in the suit till now, to contend that the 1^st defendant had suppressed the fact that the father of the plaintiff and the 1^st defendant had actually paid the sale consideration and knocked away the plaint ‘B’ schedule property. Sri P. Rajasekhar also contends that the Xerox copies of the ledgers produced by the petitioner clearly indicate that payments were made by the father of the petitioner and not the 1^st defendant. He submits that unless these facts are

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demonstrated before the trial Court, there is every possibility of the 1^st defendant and his legal heirs knocking away with the plaint ‘B’ schedule property. He contends that the petitioner had not adverted to the Xerox copies of the ledger as she firmly believed that the vendor society would produce the ledgers, and she was surprised at the response of PW.4 that the ledgers are not available with the society. He submits that in those circumstances, adequate explanation has been given under Order VII Rule 14 C.P.C., and Section 63 of the Indian Evidence Act, 1872 for the trial Court to permit production of Xerox copies as secondary evidence.

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Sri Srikanth Reddy Ambati, learned counsel appearing for the 5^th respondent submits that Xerox copies, which are sought to be produced and marked as secondary evidence, are highly suspect and there is no material to show that these Xerox copies are the copies of the ledgers maintained by the vendor society. He further submits that nothing prevented the petitioner from seeking to confront PW.4 with the Xerox copies as a preliminary step for seeking leave to produce the said documents as secondary evidence. He further submits that there was not even a whisper about the existence of these Xerox copies either in the pleadings in the suit or any of the applications or by way of suggestions to any of the witnesses and the production of these documents, at this belated stage, cannot be permitted. He further submits that the legal heirs of the 1^st defendant have adequate material to demonstrate that this property was purchased by the 1^st defendant out of his own money and no part of the consideration was paid by the father of the petitioner and the 1^st defendant.

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While Xerox copies of documents can be admitted as secondary evidence, the same is permissible only in accordance with the

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requirements of Section 65 of the Indian Evidence Act, 1872. Section 65 (c) stipulates that where the original has been destroyed or lost or when the party offering evidence of its contents again, for any other reason not arising his own default or include, produce it in reasonable time, secondary evidence is permissible. In the present case, the evidence of PW.4 that the ledgers are not available with the vendor society is sufficient to make out a case under Section 65 (c) of the evidence Act.

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The question of whether the xerox copy of the ledger is genuine or not is a matter of proof and admissibility. That stage would arise only after the petitioner is permitted to file these documents. We are still at the stage of deciding whether the petitioner should be permitted to produce these documents. As such, the issue, of whether the xerox copy is genuine or not, is not germane to the present application.

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Order VII Rule 14 (1) of C.P.C., requires that a plaintiff has to produce all the documents he/she proposes to rely upon along with the plaint. Order VII Rule 14 (2) requires that where such a document is not in the possession or power of the plaintiff, he shall state in whose possession or power the said document is available. Order VII Rule 14(3) states that where a document is not produced along with the plaint or where the location of the document is not set out, it cannot be received in evidence, unless leave of the Court is given.

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In the present case, the Plaint B schedule property was not the subject matter of the suit, initially, and as such there was no occasion for the petitioner to comply with Order VII Rule 14 (1) and (2) C.P.C. at the time of filing the suit. However, the application would still have to be tested on the principle underlying Order VII, Rule 14. That is, the plaintiff is expected to disclose these facts and documents at the earliest point of

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time. The application to include plaint ‘B’ schedule property was filed in the year 2008. It appears that there was no mention about the availability of Xerox copies of the ledger in that application nor was any mention made about these Xerox copies in any of the pleadings thereafter. In the present case, the petitioner does not state as to when her husband obtained the Xerox copies of the said ledger. No explanation has been given as to why PW.4 was not confronted with these documents when he had stated that the ledgers prior to 2003 were not available with the society.

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In these circumstances, it would have to be held that the petitioner has not made out a case for interfering with the order of the Trial Court. Accordingly, this revision is dismissed.

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There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.

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_________________________ R. RAGHUNANDAN RAO, J.

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22^nd December, 2021 Js.

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RRR,J 7 C.R.P.No.517 of 2020

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HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

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C.R.P.No.517 of 2020

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Js.

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22^nd December, 2021

A Lalitha Jayasri v. a K R Prasad (Died)

Case brief

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A Lalitha Jayasri v. a K R Prasad (Died)

Case brief

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